(d) the applicant's antecedents.
72 As to (a), the offence which the applicant committed was not in the worst category but it was a most serious offence. The judge was correct to describe it as being both "degrading" and "disgusting". Ms C was a young woman, barely eighteen years of age, and the judge found that Ms C had suffered greatly and would continue to do so. Moreover, the applicant was found to have a leading role in the events that occurred at the toilet block and there was ample evidence to warrant that conclusion.
73 As to (b), the judge made no reference to s 6 of the Children (Criminal Proceedings) Act, but it is apparent that his Honour had regard to the applicant's age. Indeed, he indicated that he found assistance in the decision of this court in R v AEM & Ors [2002] NSWCCA 58 because of the guidance it provided in cases where the offenders were young and the victim was young (ROS 29-30).
74 Two of the offenders in AEM were juveniles and the third offender was nineteen years of age when the offences were committed. The female victims were sixteen years of age. Each offender pleaded guilty to two offences under s 61J of the Crimes Act. In the joint judgment of Beazley JA, Wood CJ at CL and Sully J, their Honours addressed the considerations of the youth of the offenders and the matters of deterrence and denunciation (at pp 22-23, paras [97]-[98]):
"97 It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. Lee AJ commented on this in Nichols at 395:
'True it is … that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way .' (emphasis added)
98 Earlier in Pham (1991) 55 A Crim R 128 Lee CJ at CL said at 135:
'It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes …'
See also R v Tran [1999] NSWCCA 109 at 9 - 11."
75 What was said in AEM is apt in the circumstances of the applicant's case. Whilst the youth of this applicant remained a relevant feature, proper weight had to be given to considerations of denunciation, deterrence and retribution, and for this to occur due regard had to be afforded to the nature and circumstances of the applicant's crimes, including his leadership role at Marion Street.
76 As to (c), Bilal Skaf was not present when the meeting with Ms C first took place. The evidence established, as his Honour found, that this applicant played a leading role in drawing Ms C into the toilet block where he was the first to have intercourse with her. The evidence did not establish that the applicant was influenced by his brother in what he did at Marion Street, or in taking Ms C there.
77 As to (d), whilst the applicant's antecedents were not unfavourable, the offences for which the applicant stood to be sentenced were extremely serious and there were the earlier Form 1 matters to be addressed as well.
78 Unquestionably, the sentence imposed on the second count was a heavy one but having regard to the gravity of the crime and having regard to the fact that the Form 1 offences were to be taken into account, this Court considers that the sentence was within the available discretionary range, and, indeed, that it was entirely appropriate.
79 Turning to the second of the offences of aggravated sexual intercourse, it is again submitted that the sentence of fifteen years was manifestly excessive and, moreover, it is submitted that the extent of the accumulation resulting in a head sentence of twenty-three years was not a proper reflection of the totality of the applicant's criminality.
80 The offence of aggravated sexual intercourse committed by the applicant at Chullora was an offence to be regarded very seriously. The applicant had an awareness of what had happened to Ms C earlier in the evening and, having, regard to all the relevant circumstances and viewed individually, the head sentence of fifteen years was within the available range.
81 Having set this particular sentence, it was necessary for the judge to consider questions of cumulation, concurrence and totality: Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610.
82 The sentence for this particular offence was so structured that the non parole period set for the Marion Street s 61J offence was not extended. What was extended was the head sentence, and this by a period of six years. It was submitted that this was too long a period.
83 Having regard to the circumstance that the later offence was committed within hours of the earlier s 61J offence, and bearing in mind the applicant's age, the Court is persuaded that an effective increase in the overall head sentence by six years for the second s 61J offence resulted in the imposition of a sentence for that second sexual offence which was manifestly excessive.
84 It follows that the intervention of this Court is warranted.
85 However, the Court does not consider any lesser sentences than those set by the primary judge should be imposed for the offences the subject of counts 1 and 2.
86 The Court has considered the evidence concerning the applicant's ill health referable to the Hodgkin's disease. There was a period of six months approximately of chemotherapy and there were the complications referred to earlier in this judgment. The prognosis appears to be favourable and whilst the applicant will require monitoring by Dr MacCallum over the next three years, it appears to be unlikely that his condition will regress.
87 Seemingly the treatment which the applicant has received for his condition within the prison system has been appropriate. The Court does not ignore the added hardship of imprisonment referable to the onset of the disease, its treatment and its disturbance of ordinary prison routines for the applicant, but the Court does not consider the non parole period presently in place by reason of the sentence imposed for the earlier of the offences under s 61J should be disturbed. In all the circumstances, this Court considers that the applicant should serve no less a non parole period than the period of eleven years presently in place.
88 The judge did not add to the non parole period already fixed for the count 2 offence when imposing the sentence for the later s 61J offence, and in re-sentencing the applicant this Court will not deprive the applicant of that advantage. By reason of the applicant's age, the fact that the applicant is experiencing his first period in custody, the length of the sentence and the interests of the applicant's rehabilitation when ultimately he is eligible for release on parole, there are special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act.
89 This Court considers that fifteen years imprisonment is a proper head sentence for the count 15 offence. However, to give due effect to the totality principle, it is considered that a commencing date should be set for this sentence so that it expires two years after the head sentence for count 2.
90 This Court considers that the second of the unlawful detention offences the subject of count 14 calls for a head sentence of five years to be served concurrently with the sentence for the count 15 offence. The Court will not set a non parole period for this sentence having regard to the sentence to be imposed in respect of count 15.
91 The overall effect of the sentences to be put in place is an aggregate period of imprisonment of nineteen years with an overall non parole period of eleven years.